Opinion
2013-1400 K C
05-01-2015
First Care Chiropractic of NJ, P.C. as Assignee of CRUZ RODRIGUEZ, Appellant, v. MVAIC, Respondent.
PRESENT: : , WESTON and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 19, 2013. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground that plaintiff was ineligible for reimbursement of no-fault benefits (see 11 NYCRR 65-3.16 [a] [12]) as plaintiff was incorporated in the State of New Jersey, and not in the State of New York. Plaintiff cross-moved for summary judgment. The Civil Court granted defendant's motion and denied plaintiff's cross motion.
Contrary to defendant's apparent position in this litigation, a professional service corporation organized under the laws of another state (see Business Corporation Law § 1525 [d]) may practice in this state (see Business Corporation Law § 1529), so long as certain conditions and requirements are met (see e.g. Business Corporation Law §§ 1526-1530). In support of its motion, defendant failed to allege and prove that plaintiff failed to meet any of the requirements for a foreign professional service corporation operating in New York State, much less whether any violations by plaintiff rendered it ineligible to collect no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321-322 [2005]). Thus, defendant's motion should have been denied.
However, plaintiff's cross-moving papers failed to establish either that defendant had failed to timely deny the claim (see Viviane Etienne Med. Care, P.C. v Country- Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Consequently, plaintiff failed to establish its entitlement to summary judgment, and, thus, its cross motion for summary judgment was properly denied, albeit on grounds other than those stated by the Civil Court.
Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: May 01, 2015